Colyer v. State Bd. of Regis. for Healing

• Court: Missouri Court of Appeals
• Writing for the Court: Ronald R. Holliger
• Citation: Colyer v. State Bd. of Regis. for Healing, 257 S.W.3d 139 (Mo. App. 2008)
• Decision Date: 17 June 2008
• Docket Number: No. WD 68335.,WD 68335.
• Parties: William E. COLYER, D.O., Appellant, v. STATE BOARD OF REGISTRATION FOR The HEALING ARTS, Respondent.

257 S.W.3d 139

William E. COLYER, D.O., Appellant, v. STATE BOARD OF REGISTRATION FOR The HEALING ARTS, Respondent.

No. WD 68335.

Missouri Court of Appeals, Western District.

June 17, 2008.

Nicole Sublett, Jefferson City, for appellant.

William Sherman Vanderpool, III, and Sharie Hahn, Jefferson City, for respondent.

RONALD R. HOLLIGER, Judge.

William E. Colyer, D.O. ("Dr. Colyer") appeals the revocation of his medical license by the State Board of Registration for the Healing Arts ("Board"). Dr. Colyer raises three points on appeal claiming that the Board erred in revoking his medical license for incompetency. He claims that the overwhelming weight of the evidence shows that his failing score on the Special Purpose Examination ("SPEX") is not a valid indicator of his ability to practice medicine, that he was denied due process and equal protection in several respects, that there was no lawful basis for the Board's initiation of competency proceedings, and that the Board was not authorized by statute or regulation to use the SPEX as the sole measure of physician competency. We reverse and remand with directions.

Factual and Procedural Background

Dr. Colyer is an osteopathic physician who has been licensed in Missouri for approximately thirty years. He opened his own clinic in Dixon, Missouri, in 1983, where he continues to work as a family practitioner. He works between twenty-four and thirty hours each week, seeing up to fifteen patients per day.

The Board initiated a competency proceeding against Dr. Colyer by sending him notice and a subpoena requiring him to attend a Probable Cause Hearing. The hearing was to review and investigate Dr. Colyer's ability to "practice as a physician ... with reasonable skill and safety to patients" pursuant to section 334.100.2(25)¹. Dr. Colyer attended the hearing with counsel. At the hearing, Board members assessed his general medical knowledge by posing hypothetical scenarios and asking Dr. Colyer how he would diagnose and treat patients with various ailments.

On November 22, 2005, the Board issued its Order Finding Probable Cause questioning Dr. Colyer's competency to practice medicine because he failed to demonstrate minimally adequate knowledge of the following: (1) evaluation of a patient for Lyme's Disease, (2) the definition, evaluation, confirmation, and proper pharma-cology in the management of essential hypertension, (3) the use of Hemoglobin A1C in the monitoring of diabetes, (4) testing for a patient who is taking Coumadin, including the use of the International Normalization Ratio levels and Prothrombin time, (5) the existence of any local pain centers, and (6) diagnosis and treatment of migraine headaches.

Pursuant to section 334.100.2(25)(a), the Board required Dr. Colyer to submit to a reexamination. The Board allowed Dr. Colyer two attempts in six months to take the SPEX and receive a passing score of 75. The SPEX is a multiple-choice, standardized test provided by the Federation of State Medical Boards (FSMB). The SPEX is administered by Thomson Prometric in a computerized format. Dr. Colyer applied for and received an extension to complete the exam. He took the exam on June 22, 2006, and obtained a score of 70. Due to his failing score, the Board issued a notice compelling Dr. Colyer to attend a Final Disciplinary Hearing.

Dr. Colyer attended the hearing and was represented by counsel. The Board entered his failing SPEX score into evidence. Dr. Colyer submitted several letters from patients commending his work and service to the community. His daughter and office manager, Melissa Martinez ("Martinez"), testified that Dr. Colyer was unfamiliar with computers and that she had requested an accommodation for him to take the exam in a pencil-and-paper format. Thomson Prometric denied the request. The FSMB told her that special accommodations could be made if they were approved by the Board. Two days before the scheduled exam, Martinez wrote to the Board requesting special accommodations. The record does not include the Board's response. After receiving his failing grade, Dr. Colyer was permitted to take the test again if he wished. The record contains no indication that he desired or asked to retake the test.

Dr. Colyer next called Professor Stephen Osterlind ("Dr. Osterlind") as an expert witness in psychometrics. Dr. Osterlind is a Professor of Measurement and Statistics at the University of Missouri in Columbia. He testified that the focus of his discipline is to reduce measurement error on standardized tests. He stated that a test taker's unfamiliarity with computers could cause anxiety, resulting in a score that measures variables other than one's knowledge of the subject matter. On cross-examination, Dr. Osterlind stated that his testimony was not about the SPEX specifically since he had no familiarity with how that exam was developed. He was also unfamiliar with the FSMB, the entity that created the exam. Dr. Osterlind then testified that the FSMB could have taken all variables he had mentioned into account when creating and scoring the SPEX. Dr. Colyer did not request to take any other exam to prove his medical competence nor did he offer affirmative evidence of his competence.

The Board issued its Findings of Facts, Conclusions of Law, and Order revoking Dr. Colyer's license. The circuit court affirmed the Board's decision. This appeal follows.

Standard of Review

On appeal, this Court reviews the decision of the agency, rather than that of the trial court, to determine whether the agency action:

(1) [i]s in violation of constitutional provisions; (2)[i]s in excess of the statutory authority or jurisdiction of the agency; (3)[i]s unsupported by competent and substantial evidence upon the whole record; (4)[i]s, for any other reason, unauthorized by law; (5)[i]s made upon unlawful procedure or without a fair trial; (6)[i]s arbitrary, capricious or unreasonable; (7)[i]nvolves an abuse of discretion.

Section 536.140.2; State Bd. of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146, 152 (Mo. banc 2003). The evidence is viewed in the light most favorable to the agency's factual findings. Tendai v. State Bd. of Registration for the Healing Arts, 161 S.W.3d 358, 365 (Mo. banc 2005). This court gives no deference to the agency's conclusions of law, which are reviewed de novo. Id.

Discussion

Statutory Procedure

The procedure for the Board's determination of general medical incompetency has been outlined by the Supreme Court in Artman v. State Bd. of Registration for the Healing Arts, 918 S.W.2d 247 (Mo. banc 1996). Section 334.100.2 governs physician discipline and begins:

The board may cause a complaint to be filed with the administrative hearing commission as provided by chapter 621, RSMo, against any holder of any certificate of registration or authority, permit or license required by this chapter ... for any one or any combination of the following causes:

Following several specific causes, subdivision (25) lists the general cause of incompetency: "Being unable to practice as a physician and surgeon ... with reasonable skill and safety to patients by reasons of medical or osteopathic incompetency." Section 334.100.2(25). General medical competency proceedings are specifically exempted from the Administrative Hearing Commission's jurisdiction and are conducted by the Board. Section 334.100.2(25)(e).

Before disciplining a doctor under subdivision (25), the Board must hold a hearing and issue a finding of probable cause to question the doctor's competency. Section 334.100.2(25)(a). Neither the statute nor the Board's regulations set standards for convening a probable cause hearing or for the type of evidence required. Artman, 918 S.W.2d at 250. When the Board finds probable cause, it shall require a physician to be reexamined to establish his or her competency to practice medicine. Section 334.100.2(25)(a). Reexamination is to be "conducted in accordance with rules adopted for this purpose by the board." Id. However, the Board has never promulgated a rule governing reexamination. See 20 CSR 2150-2.015; Artman, 918 S.W.2d at 250.

When the Board requires a doctor to undergo reexamination, it must send written notice. Section 334.100.2(25)(d). The physician's failure to submit to the examination constitutes an admission of the allegations and the Board may enter a final order "without the presentation of evidence, unless the failure was due to circumstances beyond the physician's control." Id. Presumably, if the physician is found competent based on the examination standards, no further action would be taken to discipline his or her license. State ex rel. Walker v. Mo. Bd. of Registration for the Healing Arts, 926 S.W.2d 148, 150 (Mo.App. E.D.1996).

The statute does not outline a clear procedure to follow when the physician fails the examination. Id. The statute merely states that the Board may suspend or revoke a physician's license, among other disciplinary measures, "when the board finds any person unqualified because of any of the grounds set forth in this subdivision." Section 334.100.2(25)(f) and 334.100.4. Although the statute does not require a contested hearing before the Board suspends or revokes a physician's license, Artman has held that due process is satisfied, "[s]o long as before a license is revoked, the physician has a meaningful hearing with notice and an effective opportunity to defend[.]" Artman, 918 S.W.2d at 251. "The primary purpose of the statutes authorizing the Board to discipline a physician's license is to safeguard the public health and welfare." Mo. Bd. of Registration for the Healing Arts v. Levine, 808 S.W.2d 440, 442 (Mo.App. W.D.1991).

Points on Appeal

In his first point on appeal, Dr. Colyer claims that the Board erred in revoking his license because it was not supported by substantial evidence in the record, constitutes an abuse of agency discretion, and is arbitrary, capricious, and...